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Indefinite leave to remain applications under Appendix FM: slow, expensive and inaccessible￼
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The Independent Chief Inspector of Borders and Immigration has published a new report reviewing the Home Office’s processing of family visas, with a focus on indefinite leave to remain applications. It highlights that despite the findings of the Law Commission in its report, and the Home Office’s commitment to simplifying the Immigration Rules, Appendix FM remains obscure and inaccessible for applicants.
There are four areas of concern: inaccessibility of the process, delays, lack of clarity in decision letters and the wider impact of the 10 year route. Based on its finding, four recommendations were made. The Home Office accepted two of these recommendations, only partially accepting the other two.
Accessibility of the process
Even though applicants would have already made at least two previous applications under Appendix FM by the time they are due to apply for indefinite leave to remain, a large number of them still feel they need to instruct a legal representative to assist them. This leads them to incur large fees, on top of the already significant Home Office fees.
Unsurprisingly, the report finds that applicants do not feel that the current Home Office fee of £2,404 per applicant is justifiable compared to the fees for other immigration applications. EU Settlement Scheme applications are free of charge, for example, and leave to remain applications are £1,048. The high fees constitute a barrier for families to settle.
No fee waiver option is currently available and children are also liable to pay. This often results in families choosing to leave children out of the applications, potentially at risk of becoming undocumented, or opting to apply for further leave to remain, even when they are eligible for indefinite leave to remain. When these concerns were raised the response from a senior Home Office manager was, “if children were left off the applications it was a personal choice, where they test the waters before applying”.
Unfortunately, despite finding that Home Office fees are a significant obstacle to applicants accessing indefinite leave to remain, no recommendation was made on this point. The report recommended the Home Office improve the guidance available to applicants on evidential requirements for applications made under Appendix FM. This was accepted by the Home Office, with a commitment to introduce new guidance across all family applications, though no specific timescale was given.
The report found that most indefinite leave to remain applications (85%) are currently decided within the service standard, which is six months. However, the rationale behind the current service standard is unclear, considering that the standard processing time for an entry clearance application is 12 weeks, and eight weeks for a leave to remain application under Appendix FM. The report highlights that the waiting time has a serious impact on applicants, with some being unable to prove their right to work and others not being able to travel outside the UK, even in the case of family emergencies.
On this basis, the report urges the Home Office to review and reduce the service standard. In their response the Home Office partially accepted the recommendation, agreeing to carry out a review by March 2023. But they cite recovery of the service post-COVID and the situation in Ukraine as obstacles to reducing service standards, so whilst a review might be conducted by March, significant changes might not be seen so soon.
Lack of clarity in decision letters
Whilst the report found that some good practice has been developed concerning evidential flexibility when indefinite leave to remain is refused, decision letters often do not give clear reasons and, where reasons are given, letters “contain a lot of legal jargon”, referring to different paragraphs of the Rules.
On refusals, the report also noted that there is some confusion regarding remedies when indefinite leave to remain is refused but leave to remain is granted. In these cases, applicants would be able to submit a reconsideration request, and one third of the reconsideration requests submitted in such cases between 2019-2022 were successful. However, in their response, the Home Office made it clear that the policy had been applied incorrectly. Reconsideration requests cannot be made by someone who was refused indefinite leave to remain and granted leave to remain. The reconsideration policy was updated in June to reflect this.
The report made a recommendation to the Home Office to ensure refusal letters set out clear reasons and confirm which route, if any, the applicant has been granted leave to remain on, as well as when they’d become eligible for settlement. This was partially accepted by the Home Office, with a commitment to ensure that reasons for refusals are made clear in decision letters by November 2022. However, the latter part of the recommendation was not accepted. The Home Office confirmed that they will not advise an applicant as to when they might become eligible for indefinite leave to remain.
Impact of the 10 year route
Perhaps the most interesting part of the report relates to the impact that the 10 year route has on low-income families and vulnerable individuals. This includes fees associated with multiple applications, time spent in limbo waiting for decisions from the Home Office, as well as the no recourse to public funds policy and risk of destitution. There is also a risk for vulnerable individuals who may drop off and become undocumented as a result.
The impact of the 10 year route can raise equality issues as it potentially disproportionality affects vulnerable groups. The report notes that the Home Office currently does not collect data on this. As a result, the Home Office was urged to review and update the current Equality Impact Assessment to understand the impact on:
- individuals who are on 10 year route;
- individuals who fall out of the five year route before obtaining indefinite leave to remain; and
- Individuals who would be eligible for indefinite leave to remain but apply for leave to remain instead.
The Home Office accepted this recommendation and agreed to carry out an Equality Impact Assessment within 12 months.
The report highlights a number of issues concerning indefinite leave to remain applications made under Appendix FM that most immigration lawyers would have come across in their practice. It arguably represents a missed opportunity and some of the findings did not translate into recommendations. The most striking example is perhaps the extortionate Home Office fees that applicants, including children, have to pay to have their indefinite leave to remain applications considered. Particularly during a cost of living crisis, costs still represent the biggest obstacle for individuals and families who wish to settle in the UK.
Nevertheless, the recommendations made in the report are welcome, particularly the Home Office’s commitment to carrying out an Equality Impact Assessment on the impact that the 10 year route has on the most vulnerable groups. We can only hope that this might eventually lead to a positive change to the existing routes to settlement.